Date:
20130206
Docket:
IMM-8930-11
Citation:
2013 FC 129
Ottawa, Ontario,
February 6, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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MAHAMOUDOU SAMA DIABATE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a citizen of the Ivory Coast, although he has not lived there in
over 26 years. He left the Ivory Coast in 1986 and went to France, but did not obtain permanent residence status in that country. In 1993, he came to Canada and, in 1994 made a refugee claim under a false identity. This claim was refused by
the IRB and leave to this Court was denied. In 1996, the applicant married a
Canadian citizen, who attempted to sponsor him, but the spousal application was
refused. The applicant and his wife subsequently separated. In 1997, the
applicant was ordered to present himself for removal from Canada, but he failed to appear. Instead, he went to the United States, where he sought
permanent residence. That application was also denied. Despite this, the
applicant remained in United States for over six years. He then returned to Canada in 2005. Shortly after arriving in Canada, he made an application under section 25
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act or
the IRPA] for humanitarian and compassionate [H&C] relief from the usual
requirement that permanent residence must be sought from abroad.
[2]
In
a decision dated October 31, 2011, a Senior Immigration Officer rejected the
applicant’s H&C application. In the present application for judicial
review, Mr. Diabate seeks to have this decision set aside. He argues that the
Officer’s decision is unreasonable because she erred in her assessment of the
degree of Mr. Diabate’s establishment in Canada and in her analysis of the
hardship he would face in applying for permanent residence from the Ivory Coast. In terms of the content of the reasonableness standard, the applicant asserts
that there is a continuum by which decisions are assessed for reasonableness,
depending on the nature of the decision and error alleged and that in this
case, where the officer erred in her interpretation of the IRPA, reasonableness
requires that the decision stand up to a “somewhat probing analysis”, which the
Officer’s decision does not.
[3]
More
specifically, with respect to the former argument, the applicant asserts that
the officer gave insufficient consideration to the evidence of Mr. Diabate’s
ties to Canada and instead unfairly focused on the fact that he had remained
here for over six years without status. The applicant argues that reliance on
the fact of an applicant’s unauthorised presence in the country as a reason to
reject an H&C application is a reviewable error because it effectively renders
the entire analysis nugatory. In this regard, the applicant claims that the
whole point of an H&C application is to seek authorisation, on an
exceptional basis, for the lack of status and that if the lack of such status
is the basis for rejecting the application, there has been no exercise of
discretion by the H&C Officer, as is required by section 25 of the IRPA.
The applicant attempts to distinguish the several cases where this Court has
upheld H&C decisions that found there to be insufficient establishment in
Canada, despite the passage of several years while the decisions were being
considered, by arguing that in those cases the delay was occasioned by failure
to dispose of refugee or pre-risk removal [PRRA] claims in a timely fashion as
opposed to the situation that pertains here, where the delay was occasioned by
the length of time it took the respondent to process the applicant’s H&C
claim, itself. In the latter circumstance, the applicant asserts that the
Minister is under no obligation to consider the application and, therefore,
that the passage of time may be determined to be sufficient reason to grant
H&C consideration.
[4]
With
respect to the applicant’s second argument concerning the officer’s assessment
of hardship, Mr. Diabate asserts that the officer engaged in an unfair and
selective review of the evidence regarding country conditions in the Ivory
Coast, failed to assess the applicant’s personal circumstances and the hardship
he would face in being returned to a country as unstable as the Ivory Coast,
where he has no family or acquaintances and has not lived for 26 years, and,
most importantly, erred in rejecting the H&C application by reasoning that
the risks Mr. Diabate would face if returned to the Ivory Coast were shared by
all Ivorians. Even if this were true (which the applicant denies), he argues
that the officer committed a reviewable error in considering the notion of his
exposure to a generalized risk, as this concept is irrelevant to determination
of hardship under section 25 of the Act. Rather, according to the applicant,
concepts of generalised risk are only relevant under section 97 of the IRPA and
thus are only appropriately considered in a refugee determination or a PRRA.
They are not appropriate considerations in an analysis under section 25 of the
IRPA, the applicant argues, precisely because the purpose of section 25 of the
Act is to provide exceptional relief that would otherwise not be available
under other sections of the Act. If the same considerations are invoked under section
25 as exist in refugee determinations and PRRA assessments, section 25 is
stripped of all meaning, which the applicant asserts is an unreasonable
interpretation of the statute.
[5]
The
respondent concurs that the applicable standard of review in respect of each of
the errors asserted by the applicant is reasonableness but argues that such
standard is set out in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at para 47 [Dunsmuir], which requires that a decision
be upheld if it is transparent and intelligible or if it falls within the range
of permissible outcomes in light of the applicable facts and law. The
respondent argues that the officer’s decision is reasonable because she
considered all the relevant factors and came to conclusions that were
reasonably open to her on the evidence. The respondent asserts that the
applicant seeks to have the Court re-weigh the evidence and substitute its
views for those of the officer, which is not the appropriate inquiry in any
judicial review application and is especially inappropriate where what is at
issue is the review of an exercise of discretion by the Minister’s delegate.
[6]
More
specifically, insofar as concerns the applicant’s first argument regarding the
length of time the applicant had been in Canada without legal status, the
respondent argues that the officer did not premise her decision on this fact
and instead weighed and reviewed all the evidence cited by the applicant
regarding the degree of his establishment in Canada and found it to be
insufficient to warrant H&C consideration. Thus, according to the
respondent, the officer did not commit the error alleged by the applicant of
grounding her decision on the degree of Mr. Diabate’s establishment in Canada solely on the fact that the applicant has been in the country without status for a
lengthy period. In addition, the respondent argues that the jurisprudence
establishes that H&C applications are not an alternate immigration stream
and thus that mere passage of time during which an applicant has lived in
Canada, in and of itself, is insufficient to warrant H&C consideration
(citing in this regard Gill v Canada (Minister of Citizenship and
Immigration), 2011 FC 863; Mirza v Canada (Minister of Citizenship and
Immigration), 2011 FC 50; and Mann v Canada (Minister of Citizenship and
Immigration), 2009 FC 126).
[7]
Insofar
as concerns Mr. Diabate’s arguments regarding the evaluation of hardship, the
respondent argues that the officer’s interpretation of the country
documentation was reasonable, that it is certainly not for the Court to
re-weigh and re-evaluate how that documentation is to be interpreted, and that
the officer did acknowledge Mr. Diabate’s personal circumstances, including his
lengthy absence from the Ivory Coast and lack of support in that country. With
respect to the officer’s adoption of the language of generalized risk in her
assessment of the hardship the applicant might face if returned to the Ivory
Coast, the respondent argues that the officer did not apply the test under
section 97 of the IRPA but, instead, considered the hardship that the applicant
might face and determined that the applicant failed to link the country
conditions to his personal situation to establish he would suffer unusual,
undeserved or disproportionate hardship if returned to the Ivory Coast.
[8]
In
light of the foregoing, the following issues arise in this case:
1. What
standard of review is applicable in respect of the each of the errors claimed
in the officer’s decision, which involve both an alleged misinterpretation of the
IRPA and alleged unreasonable factual findings;
2. To
the extent the reasonableness standard is applicable, what is the content of
that standard;
3. Did
the officer commit a reviewable error in her assessment of the degree of Mr.
Diabate’s establishment; and
4. Did
the officer commit a reviewable error in her assessment of the hardship Mr.
Diabate might face if returned to the Ivory Coast?
Each of these issues is examined
below.
What standard of
review is applicable to the decision?
[9]
The
first error alleged by the applicant involves the officer’s assessment of the
evidence and determination of whether the degree of the applicant’s
establishment in Canada warranted H&C consideration. This is a question of
fact or mixed fact and law and is, as the parties submitted, reviewable on the
reasonableness standard (Dunsmuir
at para 51).
[10]
The
second alleged error, however, involves an alleged misstatement of the test
applicable to the assessment of hardship under section 25 of the IRPA. Although
the parties concurred that the reasonableness standard is applicable to review
of the officer’s reasoning on this point, this Court has generally found
correctness to be the applicable standard to review the test applied by an
officer under section 25 of the IRPA (see L(B) v Canada
(Minister of Citizenship and Immigration), 2012 FC 538, 216 ACWS (3d) 181 at
para 11; Prashad v Canada (Minister of Citizenship and
Immigration), 2011 FC 1286 at
para 28, 6 Imm LR (4th) 105; Sinniah v Canada (Minister of Citizenship and
Immigration), 2011 FC 1285 at para 26; Paul v Canada (Minister of
Citizenship and Immigration), 2011 FC 135 at para 15; Osegueda Garcia v
Canada (Minister of Citizenship and Immigration), 2010 FC 677 at para 7; Herman
v Canada (Minister of Citizenship and Immigration), 2010 FC 629 at para 12;
and Ebonka v Canada (Minister of Citizenship and Immigration), 2009
FC 80 at para 16).
[11]
However,
recent
jurisprudence of the Supreme Court of Canada indicates that where, as here, a
decision-maker is interpreting his or her home statute, the reasonableness
standard of review should apply (see Celgene Corp v Canada (Attorney General), 2011 SCC 1 at
para 34, [2011] 1 S.C.R. 3 [Celgene]; Alliance Pipeline Ltd v Smith,
2011 SCC 7 at para 28, [2011] 1 S.C.R. 160 [Smith]; Dunsmuir at para
54; Canada (Attorney General) v Mowat, 2011 SCC 53 at para 16,
[2011] 3 S.C.R. 471 [Mowat]; ATA v Alberta (Information and Privacy
Commissioner), 2011 SCC 61 at para 30, 339 DLR (4th) 428) [Alberta Teachers]. See also the reasoning of my colleague
Justice Mactavish in Canadian
Human Rights Commission v Canada (Attorney General), 2012 FC 445 at
paras 231-241, 215 ACWS (3d) 439 [Caring Society]).
[12]
More
specifically, beginning in Dunsmuir, the Supreme Court recognized that,
“[d]eference will usually result where
a tribunal is interpreting its own statute or statutes closely connected to its
function, with which it will have particular familiarity” (at para 54). This
was reiterated in Khosa v Canada (Minister of Citizenship
& Immigration), 2009
SCC 12
at para 44, [2009] 1 S.C.R. 339 [Khosa], a case under the IRPA: “Dunsmuir … says that if the
interpretation of the home statute or a closely related statute by an expert
decision-maker is reasonable, there is no error of law justifying
intervention.” Khosa involved a discretionary decision of the
Immigration Appeal Division [IAD] deciding whether H&C consideration was
warranted in a situation of exclusion for criminality. The nature of the
decision made was quite similar to that in this case – and the Supreme Court
held that the reasonableness standard was applicable.
[13]
In Celgene,
the Supreme Court of Canada again challenged the previous notion that
correctness should apply to statutory interpretation, noting:
34 This specialized
tribunal is interpreting its enabling legislation. Deference will usually be
accorded in these circumstances…Only if the Board’s decision is unreasonable
will it be set aside. And to be unreasonable, as this Court said in Dunsmuir,
the decision must be said to fall outside “a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (para. 47). Far from
falling outside this range, I see the Board’s decision as unassailable under
either standard of review.
[14]
The majority
in Smith made the same statement, with Justice Fish recalling Dunsmuir
by stating that interpretation of a home statute “will usually attract a
reasonableness standard of review” as per Dunsmuir and subsequent case
law (at para 28). Similarly, in Mowat, the Court observed, “if the issue
relates to the interpretation and application of its own statute, is within its
expertise and does not raise issues of general legal importance, the standard
of reasonableness will generally apply and the Tribunal will be entitled to
deference” (at para 24). Finally, in Alberta Teachers (at para 30), the
majority stated the following with respect to statutory interpretation:
[…] There
is authority that “[d]eference will usually result where a tribunal is
interpreting its own statute or statutes closely connected to its function,
with which it will have particular familiarity”[…] This principle applies
unless the interpretation of the home statute falls into one of the categories
of questions to which the correctness standard continues to apply, i.e., “constitutional
questions, questions of law that are of central importance to the legal system
as a whole and that are outside the adjudicator’s expertise, ...questions
regarding the jurisdictional lines between two or more competing specialized
tribunals [and] true questions of jurisdiction or vires’ […].” [citations
omitted]
[15]
The majority also endorsed the statement of
Justice Evans that Dunsmuir created a “very strong presumption of deferential review when a
statutory authority is interpreting its home, or constitutive, statute, or any
other frequently encountered statute, or even common or civil law principle”
(at para 41).
[16]
The
Federal Court of Appeal has not ruled directly on this issue. However, in Shpati
v Canada (Minister of Public Safety and Emergency Preparedness), 2011
FCA 286 at para 27, in reviewing a request to defer removal, the Court noted
that “any question of law on which the [removals] officer based his decision
(such as the scope of the statutory authority to defer) is reviewable on a
standard of correctness: Patel v. Canada (Minister of Citizenship &
Immigration), 2011 FCA 187 (F.C.A.) at paras. 26-27.” Removals officers,
like visa officers, make discretionary decisions under the IRPA – but then so
did the IAD in Khosa. The Federal Court of Appeal has likewise held that
review of visa officers’ interpretations of the regulations under the IRPA is to
be conducted on the correctness standard (Khan v Canada (Minister of
Citizenship and Immigration), 2011 FCA 339 [Khan] at para 26 and Patel
v Canada (Minister of Citizenship and Immigration, 2011 FCA 187 at
para 27).
These holdings, however, appear to conflict with the guidance from the Supreme
Court regarding the deference owed to a tribunal in interpreting its home
statute.
[17]
The
application of the correctness standard to an officer’s interpretation of
section 25 of the IRPA lives uncomfortably with the Supreme Court’s recent jurisprudence.
The IRPA is undoubtedly the home statute of an immigration visa officer
undertaking an H&C analysis. Thus, following the jurisprudence of the
Supreme Court of Canada in this regard, one would think that the standard of
review applicable to the test employed under section 25 should be
reasonableness. Fortunately, nothing turns in this case on the choice of
standard of review as, for the reasons discussed below, the officer’s approach
to section 25 in assessing the degree of hardship the applicant alleges he
would suffer is both incorrect and unreasonable.
What is the content
of the reasonableness standard of review?
[18]
Determining
that the standard of review is reasonableness does not end the inquiry as it is
then necessary to delineate what that standard means. As Justices Bastarache
and Lebel, writing for the majority, noted in Dunsmuir at para 46,
“[r]easonableness is one of the most widely used and yet most complex legal
concepts”. Notwithstanding the several cases from the Supreme Court of Canada
addressing the application of reasonableness that have followed Dunsmuir,
defining the content of the standard remains an elusive task.
[19]
Dunsmuir
teaches that reasonableness “is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process [as well as…] with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law [at para 47]. It is clear that the key to this standard is deference. The
Supreme Court of Canada has urged that courts should not substitute their own
views for those of the administrative decision-maker (see e.g. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 [Newfoundland Nurses] at paras 15-16). In Newfoundland
Nurses (at para 13), Justice Abella returned to the Supreme Court of
Canada’s decision in Canadian Union of Public Employees, Local 963 v New
Brunswick Liquor Corp,
[1979] 2 S.C.R. 227, in which Justice Dickson urged judicial
restraint in reviewing the decisions of administrative tribunals,
subject-matter experts in their areas of expertise, and defined the content of
the reasonableness standard (to be applied when a tribunal is interpreting its
home statute) as whether the interpretation can “be rationally supported by the
relevant legislation” (p 237).
[20]
What
appears to be emerging from the developing jurisprudence in this area is recognition
that the degree of deference required under the reasonableness standard may
vary depending on the particular nature of the question that led to the
decision taken and the context of that decision, which will both help define
the range of acceptable or reasonable outcomes. As Justice Binnie articulated
in Khosa at para 59:
Reasonableness is a single standard that take its
colour from the context. ... [A]s long as the process and the outcome fit
comfortably within the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[21]
Appellate
courts have attempted to provide some guidance in the application of this
standard and have emphasized the importance of the contextual approach
identified by Justice Binnie. In the recent decision of Attorney General v
Abraham, 2012 FCA 266 [Abraham], Justice Stratas, writing for the
Federal Court of Appeal, explained that while reasonableness is a single
standard, “asserting
that there is a range of possible, acceptable outcomes begs the question as to
how narrow or broad the range should be in a particular case” (at para 42).
Justice Stratas highlighted the importance of the context of the particular
issue facing the court in determining how wide that range should be.
[22]
The
Ontario Court of Appeal has taken a similar approach to unpacking the
reasonableness standard, endorsing a “contextual approach” that results in a
differing range of acceptable outcomes, depending upon the nature of the decision
being reviewed (see Mills v Ontario (Workplace Safety and Insurance Appeals
Tribunal), 2008 ONCA 436 at para 22, 237 OAC 71).
[23]
Following
this guidance, the application of reasonableness depends first on the
characterization of the question being reviewed. This characterization will
then shape the breadth of the range of answers and interpretations that are
rationally possible. For a highly discretionary decision rooted in factual
determinations, the range of acceptable outcomes will typically be quite
expansive. In contrast, where a court is reviewing a legislative
interpretation, or the application of a legislative provision in the exercise
of discretion, the range of reasonable decisions may be narrower (see
discussion of Justice Stratas on this point in Abraham at paras 43-48) and
will involve consideration of whether the interpretation advanced is one that
the words of the statute can reasonably bear. What is clear from the foregoing
is that the language of “somewhat probing analysis”, suggested by the
applicant, is no longer applicable.
[24]
With
this framework in mind, I turn to the case before me. As discussed, the case
law recognises that the reasonableness standard is applicable to an officer’s
assessment of whether H&C consideration is warranted on the facts of an
applicant’s particular situation. H&C consideration is a discretionary
remedy, based on an assessment of the factual circumstances of a particular
applicant, which would imply a broader range of reasonable outcomes (Abraham
at para 44).
[25]
However,
as noted, the case law indicates that the correctness standard is applicable to
review the officer’s enunciation of the test to be employed when determining
whether H&C consideration is warranted. But, even if this issue were
reviewable on the reasonableness standard, it might be subject to fewer
possible options, given the relatively higher legal content of this question (Abraham
at para 45).
Did
the officer commit a reviewable error in her assessment of the degree of Mr.
Diabate’s establishment?
[26]
Turning, then,
to the application of the reasonableness standard to the officer’s assessment
of the degree of the applicant’s establishment, guidelines for the exercise of
the officer’s discretion are found in Citizenship and Immigration Canada’s
Inland Processing Manual 5: “Immigration Applications in Canada made on
Humanitarian or Compassionate Grounds” [IP 5]. While not legally binding, these
guidelines have been recognized as being of “great assistance to the Court” by
the Supreme Court of Canada (Baker v Canada (Minister of Citizenship and
Immigration, [1999] 2 S.C.R. 817, [1999] SCJ No 29 at para 72 [Baker]).
[27]
IP 5 states
the following regarding degree of establishment in Canada at section 5.14:
Positive
H&C consideration may be warranted when the period of inability to leave
Canada due to circumstances beyond the applicant’s control is of considerable
duration and where there is evidence of a significant degree of establishment
in Canada such that it would cause the applicant unusual or disproportionate
hardship to apply from outside Canada.
[28]
As the
applicant correctly notes, relevant factors to be considered by the officer
include a history of stable employment, community involvement, and the claimant’s
civil record (IP 5 at s 11.5). The applicant points to his personal and
economic ties to Canada, including the fact that he has lived in the same
residence (with his sister’s family) for the past six years, his good civil record,
his regular employment and his close relationship with his niece and nephew,
and argues that the officer erred in minimizing these facts and in instead
focusing on the fact that he has been in Canada for a lengthy period without
status.
[29]
Where, as
here, the applicant demonstrates a certain degree of establishment, so long as
the officer considers the relevant factors, it will be rare that this Court
will intervene in the analysis, as the range of possible, acceptable
conclusions is quite large. Indeed, it is well established that it is not for
this Court to re-weigh the factors presented in an H&C application (Khosa
at para 61; Allard v Canada (Minister of Citizenship and Immigration),
2012 FC 1268 at para 45). And, as stated by Justice Blais (then of this Court)
in Lee v Canada (Minister of Citizenship and Immigration), 2005 FC 413
at para 9, while the degree of establishment in Canada may be a relevant factor
for an officer to consider, this factor is not determinative:
In my view, the
officer did not err in determining that the time spent in Canada and the establishment in the community of the applicants were important factors, but
not determinative ones. If the length of stay in Canada was to become the main
criterion in evaluating a claim based on H&C grounds, it would encourage
gambling on refugee claims in the belief that if someone can stay in Canada
long enough to demonstrate that they are the kind of persons Canada wants, they
will be allowed to stay. (Irimie v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1906)
[30]
In
addition, contrary to the applicant’s suggestion, the Minister is under
an obligation to process H&C applications made from within Canada, in light of the clear wording of the Act, which, at subsection 25(1), reads:
Subject to subsection (1.2), the Minister must,
on request of a foreign national in Canada who applies for permanent resident
status and who is inadmissible or does not meet the requirements of this Act
[…] examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.” [Emphasis added.]
Therefore, there is no distinction
between the present case and the numerous others in which this Court has upheld
findings that delay alone is an insufficient basis to justify H&C relief
(e.g. Qiu v Canada (Minister of Citizenship and Immigration), 2012 FC
859 at paras 11-13; Singh v Canada (Minister of Citizenship and Immigration),
2012 FC 612 at paras 10-15; Luzati v Canada (Minister of Citizenship and
Immigration), 2011 FC 1179 at para 21). While the delay in these cases
resulted from the time taken to process PRRA claims, there is no meaningful
difference between that situation and the present where the delay flows in part
from the time taken to process the applicant’s H&C application. In both
cases, the Minister is under a statutory obligation to process the applications.
Thus, the length of time the applicant has been in Canada does not, in and of
itself, warrant positive H&C consideration, particularly in light of the
applicant’s lack of cooperation with the immigration authorities in having
previously declined to present himself for removal when ordered to do so.
[31]
Nor
did the officer incorrectly hold the applicant’s lack of status against him, as
his counsel alleges. While the officer did comment that the applicant’s ties
“were formed in a context where the applicant was aware of the precariousness
of his status”, the decision does not turn on this point. More specifically, while
I agree with the applicant that the purpose of section 25 is to provide relief
for those without proper immigration status (see e.g. Benyk v Canada
(Minister of Citizenship and Immigration), 2009 FC 950 at para 14), this
comment was not central to the officer’s analysis: she considered the
applicant’s ties to Canada and concluded that they were not exceptional. This determination
was reasonably open to her on the facts of this case, given there is nothing
exceptional about the applicant’s situation. Thus, the first of the alleged
errors advanced by the applicant does not warrant intervention.
Did
the officer commit a reviewable error in her assessment of the hardship Mr.
Diabate might face if returned to the Ivory Coast?
[32]
The
same, however, cannot be said of the second error asserted by the applicant. In
this regard, I do find that the officer committed a reviewable error in her
assessment of the hardship that the applicant would face if returned to the Ivory Coast. In assessing this factor, the officer reviewed the current country conditions
in the Ivory Coast, which paint a picture of improving democratic conditions
but ongoing violence. She then concluded, “Although there are still some
problems in Ivory Coast, I note that they apply to the entire population. The
applicant has not shown in what respect his situation is different from that of
the population as a whole”. With respect, this formulation of the applicable
test under section 25 of the IRPA is neither correct nor reasonable.
[33]
I
agree with the applicant that such an interpretation of section 25 frustrates
its purpose. As indicated, section 25 exists to provide relief from the
provisions of other sections of the IRPA. To impose those requirements on an
applicant seeking relief from them entirely frustrates the section and is thus
an interpretation that the Act cannot reasonably bear. The officer imported a
requirement of section 97 – that, to be eligible for protection, an individual
must face a risk “not faced generally by other individuals in or from that
country” – into her section 25 analysis. Such an interpretation strips section
25 of its function.
[34]
Justice
Mandamin addressed a similar issue in Shah v Canada (Minister of Citizenship
and Immigration), 2011 FC 1269, [2011] FCJ No 1553 [Shah], where he
was reviewing a decision of an H&C officer regarding an applicant from Trinidad. In that case the officer had reasoned that the applicant had “provided
insufficient objective evidence that she would be personally targeted by the
criminal elements upon her return to Trinidad” and concluded that H&C
consideration was not warranted because “the situation and hardship the
applicant fears is faced generally by other individuals in the country” (Shah
at para 70). In determining that this decision must be set aside, Justice
Mandamin concluded (at para 73):
I
find the Officer applied a higher standard than appropriate for H&C
decisions by incorrectly requiring the Applicant to establish a personal risk
beyond that faced by other individuals in Trinidad. The test of risk causing
unusual, underserved or disproportionate hardship is not limited to personal
risks to an Applicant’s life or safety, and the Officer failed to properly
consider whether the overall problem of criminality constituted unusual and
undeserved, or disproportionate hardship in the circumstances. This constitutes
a reviewable error. […]
[35]
In coming to
this conclusion, Justice Mandamin relied upon the reasoning of Justice Pinard
in Rebaï v Canada (Minister of Citizenship & Immigration), 2008 FC
24 [Rebaï], where Justice Pinard distinguished between the proper scope of a
PRRA analysis and an H&C analysis (at para 7):
When performing a
PRRA analysis, the question to be answered is whether the applicant would
personally be subjected to a danger of torture or to a risk to life or to cruel
and unusual treatment or punishment […] On an H&C application, the
underlying question is whether the requirement that the applicant apply for
permanent residence from outside of Canada would cause the applicant unusual
and undeserved or disproportionate hardship […] While the officer can adopt the
factual findings from the PRRA analysis, the officer must consider these
factors in light of the lower threshold of risk applicable to H&C
decisions, of “whether the risk factors amount to unusual, undeserved or
disproportionate hardship” […]
[citations
omitted]
[36]
I find the
present case to be on all fours with Shah. The officer’s role in an
H&C analysis is to assess whether an individual would face “unusual and
undeserved or disproportionate hardship” if required to apply for permanent
residence outside of Canada. It is both incorrect and unreasonable to require,
as part of that analysis, that an applicant establish that the circumstances he
or she will face are not generally faced by others in their country of origin.
Rather, the frame of analysis for H&C consideration has to be that of the individual
him or herself, which involves consideration of whether the hardship of leaving
Canada and returning to the country of origin would be undue, undeserved or
disproportionate.
[37]
In
the particular circumstances of this case, it might well be an undue hardship for
the applicant to be forced to return to the Ivory Coast, a country struggling
with violence, in which the applicant has no family and has not lived for 26 years.
This consideration, though, would need to be balanced with the choices made by
the applicant, which involved disregard of the law and thereby lengthened the
period of the applicant’s absence from the Ivory Coast. The officer failed to
squarely address these issues as she focussed instead on the general conditions
faced by all Ivorians, a consideration that is wholly foreign to the required
analysis, for the reasons stated above.
[38]
Thus,
this application for judicial review will be granted and the matter remitted
for re-determination by a different officer. This case does not raise a serious
question of general importance warranting certification as it is closely tied
to the reasoning of the officer and the standard of review issue is not
determinative.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application is granted;
2. The
decision is set aside;
3. The
applicant’s H&C application shall be remitted to a different immigration officer
for reconsideration;
4. No
question of general importance is certified; and
5. There
is no order as to costs.
"Mary J.L.
Gleason"
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